Can anyone assist with a road awarded by Inclosure 1809? This road I use to access my property, was by evidenced as pre-existing way to old and ancient inclosures over which the Commissioners set-out a private carriage and driftroad 20 ft wide. Lord of The Manor compensated for his loss, surveyor of highways to maintain, not one named or implied class of recipient, connected two public highways now only one, street-lighting by County Council, public still use on foot as a through way. Public status denied by Parish Council and Highway Authority without evidence. Whilst I can build evidence, where do I take it- DMMO application or through the courts (eg S56 HA 1980)? My deeds state a public road. Corresponding with HA has led nowhere. It is as if they are waiting for a court or Inspectorate to determine the matter. Evidence of similar issue would be nice to learn of. Thank you.

Are you being denied access to your property?Or are you just trying to get it recognised as 'public' as oppose to private?Lots of access roads to properties have previously been used by the public but unless they were registered and accepted as public rights of way, the LA do not need to maintain.I am trying to second guess what you are seeking to achieve or are complaining about....can you expand?

Thank you for replying.Trying to prove status as public and there is now a secondary issue with a claim of right of way, which if actually public - no problem.Not sure I am fully understanding "registered". If you mean land registry there is no record.I am seeking to prove back in 1809 "private road" had a very different meaning than today and authorities have been wriggling out of liability for years.That coupled with public user on foot for considerable years, and the owner whoever it may be must have been aware and has not denied access, makes it a highway at least on foot.

gamba wrote:Thank you for replying.Trying to prove status as public and there is now a secondary issue with a claim of right of way, which if actually public - no problem.Not sure I am fully understanding "registered". If you mean land registry there is no record.I am seeking to prove back in 1809 "private road" had a very different meaning than today and authorities have been wriggling out of liability for years.That coupled with public user on foot for considerable years, and the owner whoever it may be must have been aware and has not denied access, makes it a highway at least on foot.

Lots of terms had very different meanings in 1809 and seeking to get a 'private road' accepted as a public right of way will prove difficult. If it has never been accepted as a public right of way then the LA are unlikley to accept that now. If the parish council also reject it as having public rights this is also against your assertions since parish councils often seek to assert public rights. You could try the Ramblers Association who actively seek to get public rights recognised.However I would be sceptical that there are any public rights. You also seem to be seeking the LA take some responsibility for 'liability' ....for what? Maintenance? Chance of success of enforcing someone else to maintain a road over which you have rights and which there are no public rights...nil.

If the 'roadway' has been there since 1809 and your property is old and has been accessed via this roadway for donkey's years then it is unlikley that someone is going to be successful in proving you have no right of way. Who is questioning it?

To Mr SheenMy right of way is not in question.My issue is with HA liability to maintain.Awarded by Inclosure with Lord of The Manor being compensated for his loss of Title to The Soil, and enfranchising an ancient manorial demesne, should have seen Title to The Soil vested in some entity, especially as the Inclosure should have provided a new route to title for all land involved. All those involved made several critical errors?

If LJC Matthew Hale stated of private ways "If it be a public way of common right, the parish is to repair it, unless a particular person be obliged by prescription or custom. Private ways are to be repaired by the village or hamlet or sometimes by a particular person.” This statement is dutifully recorded by many legal writers, barristers & judges on numerous occasions over many years.

This gives reason to question what type of private way was awarded. If it was a way for a particular person over his own land, there is no case to answer. This I have seen described as being particularis. However if it were a way private to the parish, a common parish way, which I have seen described as vicinalis, something else is at play.As the Commissioners deemed the way to be maintained by the Surveyor of Highways, the then Parish Officer, something else is at play.

LCJ Tenterden observed in R v Edmonton that roads awarded by Inclosure, and set-out before the allotments, would rebutt the ad mediun fillum presumption, as that presumption works on the basis the way is presumed set-out over the landowners soil which cannot be the case by Inclosure.

Good luck seeking to enforce this via the courts and then in your campaign to get a LA to divert money from the elderly and disabled to maintain your roadway...I believe you are fighting a losing battle so I will wish you luck in your quest and bow out.

MrSheenThank you for your wish of good fortune. I pay my council tax which helps with many causes including helping others have a publicly maintained road. If I still received a rate rebate I could use that to maintain. If successful I doubt any monies would be diverted as cost would be from another fund. Thank you for your input.

It would be interesting to read the Inclosure Award relating to this Private Road, if the duty to maintain was stated to be the Surveyor of the Highways.

Ownership would have vested in the Surveyor of the Highways and then ownership would have vested in the Parish Vestry under section 17 of the Poor Relief Act 1819.

On that evidence it would be a highway to be maintained at the public expense.

The main difficulty is that legal authority about what is the status of a private Road still reflects the fact that the word public and the word private are given their modern meanings, despite quite a lot of academic writing that this was not the correct way to decide these matters.

The case law regarding private roads most often referred to is the Dunlop case, where the judge ruled that a private road awarded by Commissioners cannot mean that it was intended to be a public highway.

Award text for maintenance and repair“And We the commissioners do hereby award and direct that the said public and private carriage and Driftroadsby us so set out shall be forever maintained and kept in repair by and at the expense of the Surveyor or Surveyorsof the Highways of the said Parish for the time being in like manner as the other public roads within the parishesare by Law as required to be maintained and kept in repair.”

Award of the roads“One other private carriage and Driftroad width of twenty feet out of the public road from ..... to ..... in aNortheast direction between an Allotment to .......... and an ancient enclosure belonging to Trustees of ..... to the south end of a land in ..... aforesaid.AndOne other private carriage and Driftroad width of twenty feet out of the north end of the last mentioned Lane in aNortheastward direction between allotments to ...., .... and Trustees of .... and anOld Inclosure in .... aforesaid to the public road from .... to .... .”

By Admeasurement... I conclude this shows the roads to be separate from the alloted land, and supports LCJTenterden's findings

...... by which said Survey Admeasurement and Plan verified upon Oath before us by the said .... it appears that the said open common fields, common meadows, marshlands, fen grounds, commons and commonable places in the said parishes of .... otherwise .... .... and .... otherwise.... .... and .... otherwise .... .... contain together exclusive of all roads and ways in over and upon the same two thousand four hundred and thirty five acres two roods two perches and which said roads and ways contain forty nine acres three roods and two perches..........

I am aware of the Dunlop case, the HA being only too pleased to inform me! There are weaknesses within it.

NB Parish own land off this road, purchased to provide public water supply 1905, pump situated by the roadside, lasted 45 years until mains water, - fetched, carted, carried, boiled, drunk.

Should add 3 other private carriage and driftroads are now recorded as publicly maintained. One is an unclassified road, another is a public bridleway, the other a public bridleway and private road, which poses a question of private and public maintenance coinciding. Asking the HA when this occurred revealed they do not know, if the status changed from their idea of private what was the legal event - there isn't one. Asking over whose land these ways exist - they don't know that either.

From 2011 until 2017 I was assisting someone who originally posted on Garden Law with an enquiry about the legal status of the road that went past their house.

My research found it was awarded as a Private road in an Inclosure Award made in 1813 and as a result of that I prepared a report for the court when it was decided that an application was to be made under section 56 Highways Act 1980 to claim this was a public highway out of repair.

Due to costs involved the court proceedings were abandoned and an alternative option was to apply to have the road listed on the definitive map and statement.

That was not successful because the Inspector who heard the Public Enquiry failed to accept that a private road set out by Inclosure Commissioners could have public rights of way over it. There is a Planning Inspectorate guide that refers specifically to the Dunlop case and confirms that this is binding on an Inspector.

If it will assist you I can e-mail a copy of the court report that dealt with certain aspects of the Inclosure (Consolidation) Act 1801 that dealt with the reasons why certain public roads could not be awarded as a public Carriage Road and Highway. If a road did not go beyond the Parish boundary it could not be defined as a public Carriage Road and Highway, even if it had always been used as a public thoroughfare prior to inclosure.

Please send me an e-mail if you want to see a copy of the report, which may present you with some information you have not already acquired.